April 3, 2004

The biggest issue in intellectual property today is how to handle Internet file-sharing, and Lessig has some interesting thoughts. Most analyses wrongly lump all file-sharing together as piracy, he says, when there are four distinct types: a) downloading content, like a Madonna CD, instead of buying it; b) sampling content before buying it; c) downloading content that is no longer commercially available; and d) downloading content that is not copyrighted, or that the rights owner wants to share. Only type d) is currently legal, but Lessig contends that b) and c) do not do any harm. The Napster problem can be solved, he suggests, by finding a way to deal with the harm that type a) file-sharing does to copyright holders.

After taking us to this critical point, however, 300 pages into his analysis, Lessig fails to deliver. There is, he says, a ”relatively simple way to compensate” copyright holders who are hurt by the more harmful kinds of downloading. He proposes a fund to pay creators whose work is shared, to be underwritten by ”an appropriate tax.” But after a brief description of the idea, which sounds on its face both impractical and politically unattainable, he refers the reader to another law professor’s book — one that has not yet been published, in fact — for a fuller explanation. Given the importance of ”Napsterization” to copyright today, it is hard not to feel cheated by this tease of a conclusion.

If Lessig’s views prevail, however, it will be far easier to produce derivative works that build and improve on existing expression. In that case, it is entirely possible that a future theorist will produce a book that starts with Lessig’s erudite explication of intellectual property law, and adds an equally thoughtful proposal for addressing the most difficult issue confronting it.

Under changes in the US-Visit program that will take effect by Sept. 30, they will be fingerprinted and photographed when they enter through any of 115 international airports and 14 seaports. There are no changes in unique rules covering visits by Canadians and Mexicans.

The Bush administration made the move after determining most of the so-called “visa-waiver countries” won’t meet an October deadline to have biometric passports, said Asa Hutchinson, undersecretary for border and transportation security. Such passports include fingerprint and iris identification features that make the documents virtually impossible to counterfeit.

The Times article suggests, unlike the Wired News article, that the Bush Administration would actually encourage other countries to institute similar rules:

He said he did not believe the move would deter tourists from visiting the United States, but acknowledged that some countries might retaliate by instituting tough new requirements for Americans traveling abroad. He went on to say the Bush administration would applaud such decisions from foreign leaders.

“We welcome other countries moving to this kind of system,” Mr. Hutchinson said at a news conference on Friday. “We fully expect that other countries will adopt similar procedures. We recognize that it’s a two-way street.”

I had assembled some materials in US-VISIT for a general exam question posed this January — here seems to be as good a place to put it:

The copyright office serves the nation and communicates to the public about copyright policy.

[...] But I’m here to tell you during this peaceful lunchtime in this lovely setting, right here at the intersection of 12th and 5th, that copyright policy is being taken away from you

And you may never get it back; and if you’re told that you’re in charge of it, as you assist with international negotiations, you’re not being told the truth.

[...] But the polemics of copyright policy has become these days like a threat — if you’re not with us, you’re against us. There’s the rising perception that copyright owners have control over all unauthorized uses. As if the mere right to control is the ultimate end of copyright policy. It’s the new normal.

But you know that this new normal isn’t reflective of actual copyright policy as was intended in the Constitution or by the framers. And that the enlistment of neutral third parties in the implementation of this new normal (manufacturers, ISPs, software companies) is overreaching.

A key part of the copyright policy response has to be resisting the claimed “newness” of this situation. The same arguments are still being made over and over again about bad generation of internet users feeling they have an entitlement to listen to music while, meanwhile, new business models are taking off — and the video guys will have the same experience.

[...] You, the copyright office policy makers, are the keepers of the flame. Don’t let this happen. Don’t let copyright policy be made without you.